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Since mid-20th century, International Law has increasingly undergone a process of “jurisdification,” which is strongly associated with the efforts made by the spheres of conflict resolution (court system), composed of experts in Law. Indeed, regionalized courts and regionalized jurisdiction1 in conjunction with a central court devoted to International Law2 issues, which is instituted within the United Nations, have established in recent history.
Such “jurisdification,” however, occurs irregularly. Moreover, it fails to deal in depth with several international politics issues, such as disarmament, nuclear energy governance, migration, labor relations, etc.1 Additionally, the linkage among the various international law subsystems has proven inadequate. For example, the dialogue between the OMC and Environmental Law seems unsynchronized, indicating that their principles and objectives are inapplicable outside their single realities or “boxes” .
One way International lawyers propose to tackle the fragmentation in this scenario lies in the vocabulary of constitutionalism. Thus, all efforts are put forward into the understanding of all the sectors of International Law as part of a greater whole, subjected to the general principles of International Law and to the United Nations Charter, as if it were some sort of World Constitution .
Nevertheless, this enterprise raises difficulties, particularly when it is taken into account that constitutionalism is linked to the French and American Revolutions, and therefore, connected to the idea of a Nation State. From birth, constitutionalism is associated with the idea that the powers of regulation are subject to the Nation State; and, likewise, the principles of freedom are subject to the private sphere. On the other hand, however aspiring to universalization, constitutionalism was established in particular contexts, more specifically, in territorially delimitated States. Thus, the internal-external delimitation was established, because the power of a State could not be exerted within the limits of another State, except in the special circumstances of annexation .
In the modern context, a process of privatization (or detachment from the State) takes place (Entstaatlichung). Such process can hinder the transposition of the elements of constitutionalism, delimitated as aforementioned, to the sphere of the transnational. Grimm singles out that, as a feature of this process, the political power has not been exerted on the internal sphere by the State alone, but it has also been shared with non-governmental agencies. Conversely, the emergence of supranational spheres intended for decision-making within the internal realm produces a considerable imbalance in the aforementioned internal-external differentiation.
As far as the “constitutionalization” of International Law, its limits and possibilities goes, there is a strong contraposition between two theoretical standpoints, especially in regards to how the “constitutionalization” of International Law is seen in terms of global constitutionalism. On the one hand, under a kantiano perspective, Habermas attempts to build a modern democratic society, having the democratic “jurisdification,”of International Law as basis for a worldwide democracy, in such a way that the power existent in the national sphere may also take place in the global sphere. This point of view presupposes a reform in the United Nations system's constituting institutions, notably of the Security Council in the General Assembly. On the other hand, there is the theoretical proposal based on the systemic theory , which rejects the possibility of global constitutionalism, because it lacks the primary conditions for the development of a jurisdiction in the same model as the Nation-State. From here on, a summarized exposition of these two theories will be attempted.

2. Two Proposed Theories regarding the phenomenon of world “jurisdification”

According to the systemic perspective, modernity is characterized by a process of differentiation and automation of functional systems in society. Each system (Art, Polítics, Law, etc.) has the capacity of self-replication (autopoiese ) through its own elements, and controls such process by means of its own code. The autopoiese of a system does not mean that it isolated from its environment; on the contrary, the cognitive aperture (to the environment) is essential to the operational enclosure of the system, which, according to Luhmann, „heiβt jetzt weder Umweltlosigkeit noch vollständige Determination durch sich selbst” .
The Rule of Law presupposes a functional differentiation between two systems: Law and Politics. This means that they replicate through their own preferred binary codes (in Law, according to the licit/illicit dichotomy; while in Politic, through the superior power/inferior power dichotomy) and through their own programs.
Politics is defined as the collective and biding decision making sphere or the generalization of influence; Its autopoiese means that communication isn’t to be determined by exogenous factors or diverse functional systems. This is not to say, however, that a relationship with other autopoietic systems (Art, Economy, Science, etc.) and with Politics does not exist. However, any external influence is re-read by Politics' own codes and programs.
The self-replication of the political system takes place in the circulation and counter-circulation of the public, “politics” e “administration”. Here, the latter is understood, in a broad sense, as the subsystem in charge of production of biding decisions, including parliament, government and administrative bureaucracy. In its strict sense, Politics is seen as “[...] the subsystem aimed at preparing issues and at the choice of people, as the test to the chances of consensus and power construction, owing its existence foremost to the organization of political parties [...]” .
Here, the differentiation of Law in modern society is seen as the control of the dichotomist code “licit/illicit” exclusively through the judicial system, which presupposes the superseding of the pre-modern, vertically differentiated model, in which Law is subjected to Politics. Hence „die Entscheidung zwischen Recht und Unrecht nur im Rechtssystem selbst getroffen werden kann” .
To Luhmann, the role of the Law in modern society is to stabilize normative expectations, in other words „das Recht ermöglicht es, wissen zu können, mit welchen Erwartungen man sozialen Rückhalt findet, und mit welchen nicht” . It is important to note that such stabilization of expectations does not mean certitude of results, because the processes of application of Law in modernity, differently than in previous periods, is distinguished for its openness to the future and its uncertainty of results.
Another essential trait of modern Law is positivity, or, alterability and “decidibility.” Once the legislation procedure becomes the process of juridical validation, together with the superseding of the dichotomy peculiar to the natural law theory (natural law/juris-positive order), the emergence of positive law, by systemic standards, takes place. In sum, valid Law is the result of the selection of other processes, and by means of such selection becomes valid, having not been constituted according to models of the past.
In the systemic model of the Democratic State of Law, the automation of the political system must be perceived as attached to the insertion of the preferred code of Law existent within the political system itself. Thusly, all political system decisions are subjugated to the Law system, which nonetheless implicates in the lack of differentiation between the two. In fact, a synallagmatic relationship is developed between those two systems, resulting in mutual benefit . On the one hand, Law normalizes parliamentary and election procedures, regulating procedures for the formation of political will; on the other, Politics deliberates over the adoption of new normative structures by the juridical system.
In this context, the Constitution occupies a central position, so far as it is seen as society's evolved acquisition, and defined as the structural coupling of Law and Politics. It must be observed, however, that this is not the case of a linkage between Law and Politics whatsoever, as “the operational autonomy of the two systems is both condition and result of the coupling itself” . This way, the “historic-universal” concept is kept away from the Constitution, once it is the Constitution what makes the coupling of Politics and Law possible as a typical modernity phenomenon.
Politics as well as Law define the Constitution as an internal mechanism of their self-replication under the theoretical perspective here presented.
From the perspective of Law, it promotes the enclosing of the system by means of re-insertion, substituting the external hierarchy typical of the natural law state theory for an internal juridical order, which is based on the supralegal validity of the constitutional law „Die Verfassung selbst ist, ihrem formalen Verständnis nach, die Negation der uneingeschränkten Abänderbarkeit des Rechts” .
Whereas from the perspective of Politics, the constitution inserts the Law code (licit/illicit) as a its secondary code, immunizing it against particularistic pressures. Moreover, it institutionalizes electoral procedures, power division and fundamental rights. Fundamental rights play the role of stopping the “de-differentiation” of social systems, as they shouldn't be the object of analysis from a moral standpoint, but from a functional one.
Neves points out that, following Luhmann's vision , the conditions for the articulation between Politics and Law were not developed in the supranatural global sphere, similarly to the structural coupling forged in the sphere of the States, which were transformed by modernity . In his words:
The world or International political-judicial public sphere works in a timely and intermittent manner, in other others, it isn't capable of influencing generally and permanently the respective political and juridical procedures. (...)
[...] That is to say that the problem is correlated to the inexistence of a constitutional people or functional equivalent which assures the operational enclosing of the political system. That makes a generalized support possible within in the context of a hiper-complex society.

From a distinct perspective, Habermas tries to build a global “constitutionalization” project, gearing his efforts towards the articulations of a world society constituted democratically, even if without a world government.
Thus, by transponding the articulation from public and private live, as developed in previous works , to the global sphere, Habermas intends to offer a solution to the lack of legitimacy in International Law, foremost in lieu of the crisis faced by the European Union. There is a strong correlation between the warranty of fundamental rights and public autonomy, meaning, between the rights to freedom in the decision-making spheres and the rights to political participation. This is done in in order to demonstrate that these traditions are reconcilable. In fact, the co-originality thesis (Gleichursprünglichkeit) aims at seizing any precedent relationship between public and private autonomy, pointing out to a reciprocal overlap instead.
Wherefore, in face of fact that the Law produced in transnational spheres does not obey democratic criteria, it seeks to lay the basis of a cosmopolitan society, where the United Nations would be re-organized in order to play the important role of global enforcer of Human Rights and warrantor of peace. However, this does not implicate in the dissolution of the power of States, since the international community would not end the monopoly of State violence, which from hence on would be subordinate to predefined principles created in the global sphere. The UN General Assembly would be composed by the State Parties, as a second constituent individual from the world community, and by world citizens , acting as a type of world Parliament. Over International Courts would befall the important duty of warranting Human Rights, as well as warranting that the democratically defined rules for future beneficiaries (representatives of State Parties and world citizens) are observed with regularity.
The question is whether this “jurisdification” is possible in a global society characterized by different levels of modernity (central and peripheral), by strong asymmetries between North and South, and by the strong influence of private corporations with tendencies to expand over various social systems (Health, Education, etc.), in which communication follows the specific rationale of the will of the Market.

3. Conflicts between juridical orders in the global sphere

The issue becomes more complex when the collision between juridical orders in the global sphere is taken into account. The aim here is to analyze the conflict of rationales between self-constituent regimes, which are functionally different and produce not only primary norms, but also secondary ones. This research looks at the cases of collision between the world economic system, utilized by Economy agents related to the tobacco industry, on one side and, on the other side, the world health system, which creates rules that are contrary to the interests held by said big transnational conglomerates.
The first case to be studied in this research is related to the implementation of legislative measures taken in part by Australia in order to reduce the consumption of tobacco and derivatives. This case is referred to as the Plain Tobacco Packaging Act 2011 , by means of which restrictions were applied to the packaging of tobacco related products in order to observe determinations set in the international sphere (art. 11, Framework Convention on Tobacco Control-FCTC ). In October of 2012, the Australian Supreme Court rejected the judicial action filed by the tobacco industry (British American Tobacco, Imperial Tobacco, Japan Tobacco and Philip Morris), considering, therefore, that the restrictive measures on cigarette packaging advertisement were not an infringement to the Constitution of that country.
Another conflict between the transnationally organized tobacco industry and the implementation policies of the FCTC art. 11 happened in the Oriental Republic of Uruguay, when that State adopted legal measures determining the inception of pictograms into cigarette packaging. The pictograms adverted users against the health risks caused by tobacco products (art. 1o de la Ordenanza 514 de agosto de 2008 del Ministerio de Salud Publica). It was also demanded that each cigarette brand displayed the same images in order to disband the idea that some cigarettes were less harmful than others (art. 3o de la Ordenanza 514 de agosto de 2008 del Ministerio de Salud Publica). In addition, it was determined that sanitary disclaims were to be expanded from 50% to 80% of the surface of both sides of cigarette packages (Decreto 287/009 de junio de 2009) .
In the Australian case, still in the begining of 2012, Ucrane began a process of consulting with the WTO , in order to verify the supposed infringement of the obligations undertaken by the Australian State at the TRIPS – Agreement on Trade-Related Aspects of Intellectual Property , as well as the supposed disrespect to pact made at the TBT – Agreement on Technical Barriers to Trade .
As to the case of Uruguay, FTR Holding S.A., Philip Morris Products S.A. and Abal Hermanos S.A. filed a suit regarding arbitration procedures (art. 36, ICSID Convention), in which they defend that the restrictive measures to advertisement on cigarette package violated obligations undertaken by that country as described in the articles 3(1), 3(2), 5 e 11 , of the Tratado Bilateral de Investimento (BIT), entered into with Switzerland . Being Swiss investors, the accusers requested financial compensation for the profit losses suffered in consequence of the measures taken on behalf of public health by the Uruguayan government. Despite having presented a contestation, alleging incompetence by ICSID to solve the controversy, the complaint was deemed admissible and the suit is being processed.
This case is an example of strong contraposition between autonomic juridical orders. In order to fulfill an obligation, determined by an international treaty in the sphere of the differentiated system of Health (WTO), a State must disobey obligations entered into in other multilateral or bilateral treaties (BIT Switzerland-Uruguay), articulated in the sphere of the Economy system . Therefore, isn't there a paradox created in consequence of the overlapping of juridical orders in relationship to the functionally differentiated systems? How can the conflicts between systems oriented by divergent rationales be managed? Is a model of management distanced from the issue of collision, such as proposed by Fischer-Lescano and Teubner , capable of solving the conflicts between diverse systemic rationales?
Because the WHO system does not possess an entity provided with judicial functions, and neither does the Economy system (ICSID e Dispute Settlement Body/WTO), the conflicts aforementioned will be solely subject to the decision of a judicial organism that replicates the rationale of the latter differentiated system. In that context, it is noteworthy that the decisions of the international judicial entities do not only exert influence over the specific case being submitted to trial, but also such entities act as lawmakers and global governance beyond the Nation Party . Therefore, a decision made in the Economy system sphere, even if in mere reference to the application of the art. 11 of FCTC by the two Nation Parties (Australia and Uruguay), can have significant consequences in terms of the autonomy of the Health system and in terms of its own “jurisdification.” In that sense, “when conflicts emerge between treaty provisions that have their home in different regimes, care should be taken so as to guarantee that any settlement is not dictated by organs exclusively linked with one of the other of the conflicting regimes.” The words of the Report of the Group of Studies for ILC demonstrate a strong concern with the risks that a single conflict between different regimes be solved only by an entity in which only one regimen is represented.
At first sight, it seems that there is a risk of maximizing the rationale of one differentiated system (Economy) over the other (Health), which may compromise the very coupling of the latter system and the juridical system . Perhaps a perspective that supplants this overlapping could offer a new look and new possibilities for democratic and responsive “jurisdification” within a multi-centric global structure.
Because of the fragmentation of International Law and of the asymmetry in the relations among the various international players (States, supranational organizations, non-governmental organizations, private conglomerates, etc.), the solution does not lie on a hierarchic model. It is important to note, though, that such conflicts result from the “Polykontexturalisierung” of the juridical function, as the proliferation of spheres endowed with decision-making power within the self-constituent regimes do not possess the equivalent warranty by the global juridical order unit, such as in happens developed nations. Maybe Derrida's warning - that justice is the experience of the absolute otherness, but it has also to be urgent and include the other - might offer an important perspective to deal with the conflicts of rationales. However, this can only occur if the code Recht/Unrecht, created in the sphere of a specific system (Economy) is not applied to other systems (Health, for example), or, better yet, if the other (system that is hindered by the expansion of another) is in control of its own code, repelling the generalized expansion of the economic rationale.

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PhD - University of Arkansas

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Years of translation experience: 12. Registered at ProZ.com: Jun 2016.